## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 30 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

In re: CLARENCE JOSEPH EBEL, JR., doing business as Haystack Mountain Golf Course & Driving Range, doing business as Golf Haystack,

Debtor.

LOIS J. EBEL,

Plaintiff-Appellee,

v. CLARENCE JOSEPH EBEL, JR.,

Defendant-Appellant, and DENNIS W. KING, Interim Trustee,

Defendant, ROBERT KAYNE, E. WARREN GOSS; W.F. ROBINSON, III,

Defendants-Intervenors. No. 96-1190 (D.C. No. 95-K-1860) (D. Colo.)-2-

In re: CLARENCE JOSEPH EBEL, JR., doing business as Haystack Mountain Golf Course & Driving Range, doing business as Golf Haystack,

Debtor.

LOIS J. EBEL,

Plaintiff-Appellee,

v. CLARENCE JOSEPH EBEL, JR.,

Defendant, and ROBERT KAYNE, E. WARREN GOSS, W.F. ROBINSON, III,

Defendants-Intervenors - Appellants,

DENNIS W. KING, Interim Trustee,

Trustee. No. 96-1210 (D.C. No. 95-K-1860) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 The former law firm that represented Mr. Ebel had b een allowed to intervene in the bankruptcy proceedings. The intervenors are the appellants in case No. 96-1210; Mr. Ebel is the appellant in case No. 96-1190. -3- ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate records, t his panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. These cases are therefore ordered submitted without oral argument. 1 Procedural Background In 1986, appellee Lois Ebel was granted a divorce f rom appellant Clarence “Bud” Ebel by the Boulder County District Court (“t he Boulder court”). That court retained jurisdiction over the division of th e marital property which included a nine-hole golf course, a driving range, an adjoining house, and three2 There is confusion over exactly which pieces of the marital property were

placed in receivership. Resolution of that issue, however, is not necessary for the disposition of the specific issues presented by the se appeals. -4- nearby building lots. The property, which after th e divorce was owned by the Ebels as tenants in common, was eventually turned o ver to a receiver. 2After much wrangling and attempts by both parties to buy out the interest of the other, a permanent orders hearing to determine the division of property was set by the Boulder court for March of 1990. Before that heari ng could be completed, however, Mr. Ebel apparently became ill, and the he aring was rescheduled to June 12, 1990. On June 8, 1990, Mr. Ebel filed a volunt ary Chapter 7 bankruptcy petition. Despite having been informed of the bank ruptcy filing, the Boulder court, on June 12, 1990, reconvened the property di vision hearing. Although he had been told that the hearing would continue despi te his bankruptcy petition and the resulting automatic stay, Mr. Ebel did not part icipate in the reconvened hearing. After the hearing, the Boulder court issu ed findings of fact and conclusions of law awarding the entire marital prop erty to Mrs. Ebel. That order and decree is dated June 14, 1990 (“Boulder court O rder”). By motion dated June 18, 1990, Mrs. Ebel petitioned the bankruptcy court for relief from stay. After a hearing, the bankrup tcy court, in an order dated July 20, 1990, granted relief from stay “solely for the purpose of permitting the state-5-

court’s Order and Decree dated June 14, 1990 in Bou lder County District Court, Case No. 85 DR 1206 to enter” (“July 1990 Order”). Appellant’s App. at 62. Mr. Ebel did not challenge this order. Instead, Mr. Ebel proceeded to appeal the Boulder c ourt Order granting the marital estate to his former wife. That order was affirmed by the Colorado Court of Appeals, which found the distribution to be equi table based on Mr. Ebel’s withdrawals of assets from the marital estate. See In re Marriage of Ebel , 874 P.2d 406, 407 (Colo. Ct. App. 1993). In response t o Mr. Ebel’s argument that the Boulder court Order was unenforceable because it vi olated the automatic stay, the Colorado Court of Appeals cited the bankruptcy court’s July 1990 Order as having lifted the stay, thus obviating any basis fo r reversing the judgment based on the effect of the stay. The court noted that Mr . Ebel’s “concerns as to the bankruptcy court’s order are better addressed to th at court.” Id. at 408. The Colorado Supreme Court denied the petition for cert iorari. While Mr. Ebel’s state court appeal was pending, Mr s. Ebel filed a complaint in the bankruptcy court against Mr. Ebel and the trustee seeking an order compelling the defendants to render to her an accounting and to turn over to her “all proceeds received by the Trustee and/or De btor postpetition from the operation of the Golf Course and from the marital p roperty.” Appellant’s App. at-6-

66-69. Mrs. Ebel also requested that the stay be l ifted allowing her to execute and implement the Boulder court Order. The bankruptcy court initially denied Mrs. Ebel’s m otion for summary judgment on this complaint. It concluded that the trustee’s interest in the property as a hypothetical judgment lienor, pursuant to 11 U .S.C. § 544(a), was superior to Mrs. Ebel’s equitable resulting trust in the property because Mrs. Ebel had filed neither a lien nor notice of lis pendens so as to p ut the trustee on notice of her claim. The district court reversed, holding that th e trustee could not avoid Mrs. Ebel’s interest in the property because the presenc e of the receiver gave the trustee constructive notice of Mrs. Ebel’s interest , thus preventing him from acquiring good title from Mr. Ebel. See Ebel v. Ebel (In re Ebel) , 144 B.R. 510, 516 (D. Colo. 1992) (“September 1992 Order”). The case was remanded to the bankruptcy court for further proceedings. For the next two years, the parties engaged in sett lement negotiations which ultimately proved unsuccessful. On March 25, 1994, the bankruptcy court issued an order on remand from the district court’s Septem ber 1992 Order, reversing its prior position and granting Mrs. Ebel’s motion for summary judgment on her turnover complaint (“March 1994 Order”). The courtreasoned that, even though the Boulder court hearing of June 1990 technically violated the automatic stay provision of 11 U.S.C. § 362, the July 1990 Order o f the bankruptcy court had in-7-

reality “ratified” the state court action and effec tively adopted the state court order as an order of the bankruptcy court. Thus, t he Boulder court’s decision regarding Mrs. Ebel’s interest in the property was now given retroactive effect in the bankruptcy proceeding. The trustee moved for reconsideration, arguing due process concerns and concerns regarding the disposition of the three bui lding lots and other appurtenances to the golf course that were not spec ifically addressed in the Boulder court Order. After a hearing, the bankrupt cy court again changed course, finding that the action of the Boulder court in awa rding the marital property to Mrs. Ebel had indeed been invalid because it was ta ken in violation of the automatic stay. See Appellant’s App. at 265-66 (“June 1994 Order”). T he order further found that “the property division order, ma de without [Mr. Ebel’s] participation, raises due process concerns.” Id. at 265. Citing the district court’s conclusion in its September 1992 Order that the tru stee could not avoid Mrs. Ebel’s interest in the golf course property an d this court’s opinions in Calder v. Job (In re Calder) , 907 F.2d 953 (10th Cir. 1990), and Ellis v. Conso lidated Diesel Electric Corp. , 894 F.2d 371 (10th Cir. 1990), the bankruptcy cou rt concluded that the Boulder court Order was void. T he stay was then modified to permit the parties to return to state court to reli tigate the property issues addressed in the June 1990 Boulder court hearing.-8-

As an additional part of the June 1994 Order, the b ankruptcy court determined that the district court’s September 1992 Order applied only to the golf course and the residence because they were the onlyportions of the marital property subject to receivership. The court conclu ded, therefore, that the trustee could avoid Mrs. Ebel’s interest in the three build ing lots and could pursue their liquidation. The court stated: “the parties may r esolve their ownership disputes regarding the proceeds based upon the adjudication of the division of marital property.” Appellant’s App. at 266. Finally, the bankruptcy court amended its March 1994 Order to deny Mrs. Ebel summary judgmentas to the golf course property and to grant summary judgment to the trust ee as to the three building lots. The June 1994 Order was filed on June 10, 19 94. Under Bankruptcy Rule 9023, making Fed. R. Civ. P. 59 applicable (with certain exceptions not relevant here) to cases in b ankruptcy, Mrs. Ebel had ten days within which to file a motion to alter or amen d the June 1994 Order. According to Mrs. Ebel’s attorney, however, she didnot receive a copy of the order until 4:30 p.m. on June 20 via fax. The atto rney immediately filed a motion for additional time to file her “motion to reconsid er” the June 1994 Order. On June 22, 1994, the bankruptcy court granted Mrs. Eb el’s motion for additional3 Rule 59(e) provides that “[a]ny motion to alter or amend a judgment shall

be filed no later than 10 days after entry of the j udgment.” A “motion to reconsider” is not among the motions recognized by the Federal Rules of Civil Procedure. A motion filed within ten days of the e ntry of judgment will ordinarily be treated as a Rule 59(e) motion. Moti ons served after that time are construed as Rule 60(b) motions. See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991). It is immaterial thatthe party filing the motion has attached a particular label to it. See Dalton v. First Interstate Bank of Denver , 863 F.2d 702, 703 (10th Cir. 1988). The timing of the motion determines its character. -9- time. Her motion to reconsider is dated June 30, 1 994 and relies on Fed. R. Civ. P. 59(e) as the basis for relief. 3 In granting Mrs. Ebel’s motion to reconsider, whichit treated as a Rule 59(e) motion, the bankruptcy court once again chang ed direction. On August 9, 1994, the court issued an order which revisited the arguments advanced in prior proceedings, vacated the June 1994 Order, and reins tated the order of March 1994. In so doing, the court concluded that, becau se Mr. Ebel had pursued an appeal of the state court property judgment through the state appellate system, he had, indeed, received full due process. The court further reiterated its intent to adopt, as orders of the bankruptcy court, the perma nent orders issued by the Boulder court in June of 1990 (“August 1994 Order”)

. Both the trustee and Mr. Ebel appealed. The distri ct court, aware that the bankruptcy court had no authority to extend the tim e for filing Mrs. Ebel’s Rule 59(e) motion, see Collard v. United States , 10 F.3d 718, 719 (10th Cir. 1993);4 Rule 60(b) provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a fina l judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovere d evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether he retofore denominated intrinsic or extrinsic), misrepresentat ion, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharge d, or a prior judgment upon which it is based has been reversed o r otherwise vacated, or it is no longer equitable that the judg ment should have prospective application; or (6) any other reason ju stifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b). -10- Bankr. R. 9006(b)(2); Bankr. R. 9023, dismissed the appeal without prejudice and remanded it to the bankruptcy court to determine wh ether its August 1994 Order should be vacated for lack of jurisdiction. Acknowledging that it could not treat Mrs. Ebel’s m otion as a Rule 59(e) motion, the bankruptcy court proceeded to consider whether Mrs. Ebel was eligible for relief under Rule 60(b). Concluding t hat she had satisfied the requirements for relief under both 60(b)5 and 60(b) 6, 4 the bankruptcy court, in an order dated July 14, 1995, reaffirmed its August 19 94 Order. In so doing, the court also determined that its previous ruling granting summary judgment to the trustee on the issue of possession of the building lots was “premature” because there had been no motion for summary judgment by th e trustee, Mr. Ebel, or the-11-

intervenors pending at the time the court granted s ummary judgment on the lots. Mr. Ebel and the intervenors appealed the July 14, 1995 order to the district court. The district court affirmed, holding that the bankr uptcy court had not erred in failing to dismiss the Rule 59(e) motion as unti mely and that it was proper for the court to treat the motion as one under Rule 60( b). The district court did not specifically address Mr. Ebel’s argument that the g rant of relief under Rule 60(b) was an abuse of discretion. Instead, the district court addressed the merits and rejected Mr. Ebel’s argument that, in March 1994, b y suddenly characterizing the June 1990 Order as a ratification of the Boulder co urt’s property division without notice to him, the bankruptcy court denied him due process. It also rejected Mr. Ebel’s contention that the ratification was voi d because it violated the automatic stay. It is this district court order, a ffirming the July 14, 1995 order of the bankruptcy court, which is the subject of this appeal. On appeal, Mr. Ebel argues that the bankruptcy court abused its discretion in granting Mrs. Ebel relief under Rule 60(b); thatneither the bankruptcy court nor the parties intended at the time of the June 19 90 Order to give retroactive effect to the Boulder court Order, and, alternative ly, that the grant of such retroactive relief from stay was an abuse of discre tion. The intervenors urge similar arguments.5 With some modifications not relevant here, Rule 60( b) is made applicable

to the bankruptcy courts pursuant to Bankr. R. 9024

. -12- Rule 60(b) Ruling We begin by noting that the bankruptcy court was re quired to construe Mrs. Ebel’s motion for reconsideration, filed beyon d the ten-day limit for filing a Rule 59(e) motion, as one for relief under Rule 60( b). 5 See Van Skiver , 952 F.2d at 1243. Rule 60(b) gives courts a “grand reservoi r of equitable power to do justice in a particular case.” State Bank of South ern Utah v. Gledhill (In re Gledhill) , 76 F.3d 1070, 1080 (10th Cir. 1996) (quotations o mitted). Under the rule, federal courts have “broad authority to relie ve a party from a final judgment ‘upon such terms as are just . . . for . . . any ot her reason justifying relief from the operation of the judgment.’” Id. (quoting Fed. R. Civ. P. 60(b)(6)). Such relief may be granted only in “extraordinary circumstances and only when such action is necessary to accomplish justice.” Lyons v. Jeffers on Bank & Trust , 994 F.2d 716, 729 (10th Cir. 1993) (quotation omitted). Our review of the court’s grant of Rule 60(b) relie f is for abuse of discretion, see In re Gledhill , 76 F.3d at 1080, however, a “‘district court woul d necessarily abuse its discretion if it based its ru ling on an erroneous view of the law or on a clearly erroneous assessment of the evi dence.’” Lyons , 994 F.2d at6 We have recently examined the circumstances under w hich an order

granting relief under Rule 60(b) (as opposed to one denying such relief) will be a final decision within the meaning of 28 U.S.C. § 12 91 or otherwise appealable under generally applicable rules governing appellat e jurisdiction. See Stubblefield v. Windsor Capital Group , 74 F.3d 990, 995-97 (10th Cir. 1996) (holding that an order granting Rule 60(b) relief t o void a settlement agreement which also vacated a judgment and scheduled both a settlement conference and a jury trial was not final for purposes of appeal). In contrast to Stubblefield , however, the order of the bankruptcy court here granting Rule 60(b) relief reinstated its order of March 25, 1994 granting sum mary judgment to Mrs. Ebel, thus effectively ending the litigation on the merit s and leaving nothing more for the court to do but execute the judgment. The orde r granting Rule 60(b) relief under these circumstances, therefore, is final and appealable. -13- 727 (quoting Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405 (1990)). 6 To the extent the bankruptcy court based its ruling on discretionary factors, we review for abuse of discretion; to the extent its r uling was based on its findings of fact and conclusions of law, however, we apply the traditional review reserved for those determinations -- clearly erroneous for the f indings of fact and de novo for the legal conclusions. See Lyons , 994 F.2d at 727. Apart from the standard of review discussed above, we must also be concerned with the proper scope of review. It is c lear that review of the denialof a Rule 60(b) motion is confined only to review of t he order of denial and does not extend to review of the underlying judgment itself. See Van Skiver , 952 F.2d at 1243. Similarly, our cases reviewing the grant of Rule 60(b) relief have involved review of the order granting such relief and the ba ses therefore and not of the merits of the underlying judgment. See, e.g. , Gledhill , 76 F.3d 1070; Orner v.-14-

Shalala , 30 F.3d 1307 (10th Cir. 1994); Oklahoma Radio Ass ocs. v. FDIC , 987 F.2d 685 (10th Cir. 1993); Zimmerman v. Quinn , 744 F.2d 81 (10th Cir. 1984). Thus, because this case is an appeal from a ruling on a Rule 60(b) motion, our review is limited to the propriety of that grant of relief and, as part of the Rule 60(b) analysis, will not extend to the merits of th e underlying judgment. Relief under Rule 60(b) is extraordinary and shouldonly be granted under exceptional circumstances. See United States v. 31.63 Acres of Land , 840 F.2d 760, 761 (10th Cir. 1988). Although the bankruptcycourt specifically cited grounds under Rule 60(b)(5) and 60(b)(6) to supportits grant of relief, “there is no need to pinpoint which clause of Rule 60(b) is t he basis for the decision below where a timely motion is being reviewed.” Pelican Prod. Corp. v. Marino , 893 F.2d 1143, 1145 (10th Cir. 1990). Instead, we exam ine the record as a whole to determine the propriety of the court’s judgment. S ee id. It is improper for a court to grant relief under Ru le 60(b) if, in doing so, the court simply revisits arguments which had already b een raised and dismissed. See Van Skiver , 952 F.2d at 1244. Nor is it proper to “advance[] new arguments or supporting facts which were otherwise available forpresentation when the original . . . motion was briefed.” Id. at 1243 (quotation omitted). In her motion to reconsider, Mrs. Ebel revisited issues which hadalready been considered and ruled on by the court. She argued the status of th e building lots and the effect of-15-

the stay on the Boulder court order. These issues had clearly been decided in the June 1994 Order. Revisiting issues already address ed is not the purpose of Rule 60(b), see id. , and the bankruptcy court abused its discretion in granting relief on that basis. In addition to grounds already decided by the court , Mrs. Ebel argued in her motion to reconsider that the bankruptcy court’s Ju ne 1994 remand to state court for purposes of dividing the marital estate was err oneous because the state court proceeding had long since closed. She also urged the bankruptcy court to “abstain” on the issues regarding marital property as an exercise in comity. Mrs. Ebel can qualify for Rule 60(b) relief by demo nstrating one or more of the six grounds for such relief specified in the Rule. None of the grounds enumerated in her motion to reconsider, however, fit any of th e Rule 60(b) categories nor do they constitute the exceptional circumstances requi red. To the extent that these arguments attempt to pointout mistakes of law, Rule 60(b)(1) provides an avenue for relief under these circumstances only for “obvious errors of law, apparent on the record.” Id

. at 1244. These issues do not involve any facially obvious legal errors. Arguments that the court misapplied the law or misunderstood the movant’s position are prop erly brought under Rule 59(e) but cannot be the basis for relief under Rule 60(b) . See id.-16-

To the extent that the cessation of the state courtproceedings is cited as a “changed circumstance,” we note below that there ar e other avenues available to decide the fate of the marital estate aside from re turning the issues to the Colorado courts. The fact that the Ebel dissolutio n matter is closed in the Colorado system is not a sufficiently exceptional c ircumstance justifying Rule 60(b) relief. Even in the broader picture of this case, it is cle ar that, in granting Rule 60(b) relief to Mrs. Ebel, the bankruptcy court mer ely revisited old ground. As noted above, after entering his March 1994 Order gi ving relief to Mrs. Ebel, the bankruptcy court changed course and reversed itself in the June 1994 Order. After the submission of Mrs. Ebel’s motion to recon sider, which the bankruptcy court mistakenly treated as a Rule 59(e) motion, th e court entered its August 1994 Order, changing course yet again and returning to aposition of the March 1994 Order granting relief to Mrs. Ebel. This August 19 94 Order was characterized by the district court as “revisit[ing] arguments” whic h formed the basis for the June 1994 Order. Among the issues revisited were the ef fect of the automatic stay on the Boulder court order and the general due process issues. After the district court remanded the August 1994 O rder because of the improper extension of time under Rule 59(e), the ba nkruptcy court, in an order dated July 14, 1995, simply reaffirmed its August 1 994 Order, but this time under7 Mrs. Ebel’s assertion that this issue was not raise d in the district court is

incorrect. See Opening Br. in Appeal of Adversary Proceeding No. 91-1158-DEC, United States Bankruptcy Court for the District of Colorado at 11. -17- the auspices of Rule 60(b). Thus, because it merel y revisited arguments already rejected, the bankruptcy court abused its discretio n in granting Rule 60(b) relief to Mrs. Ebel under the circumstances. 7 Application of Rule 59(e) If Mrs. Ebel’s motion to reconsider had been timelyunder Rule 59(e), she could properly have urged her arguments that the law had been misapplied and her position misunderstood. See id. An appeal from a ruling on a Rule 59(e) motion would also have raised the bankruptcy court’ s underlying judgment for review by this court. See id. at 1243 n.3. In order to avoid the constrictions of Rule 60, Mrs. Ebel, citing Thompson v. Immigration & Naturalization Service , 375 U.S. 384 (1964), and Stauber v. Kieser , 810 F.2d 1 (10th Cir. 1982), argues that unique circumstances exist to justify her tardy Rule 59(e) motion. She particularly emphasizes the late receipt of notice from the court of the filing of the June 1994 Order (apparently due to insufficientpostage) and the bankruptcy court’s later erroneous grant of an extension of ti me to file her Rule 59(e) motion. This case presents the issue we recently identified in Home & Family, Inc. v. England Resources Corp. (In re Home & Family, In c.) , 85 F.3d 478 (10th Cir. 1996): whether “parties represented by counsel mayreasonably rely on an order-18-

entered in excess of a court’s jurisdiction” to exc use an untimely Rule 59(e) filing. See id. at 480-81. Again, however, we will defer resoluti on of that issue because of “our duty to refrain from rendering opin ions on abstract propositions, or to declare principles or rules of law which cann ot affect the matter in issue in the case before us.” Id. at 481 (quotations omitted). Even if we were to a gree that unique circumstances exist here to overlook th e untimeliness of the purported Rule 59(e) motion, our review of the merits of the underlying bankruptcy court order would compel us to reverse the district court ’s affirmance of the relief granted Mrs. Ebel. Instructions on Remand As part of their prayer for relief on appeal, intervenors request this court to remand with instruction “to either conduct a hearin g on the merits to fix the respective marital property interests of the debtorand of his former wife in the golf course and driving range as a ‘related proceed ing’ under 28 U.S.C. § 1471(b), or to deflect jurisdiction to the state divorce court for that determination.” Intervenors’ Opening Br. at 13. While we note that 28 U.S.C. § 1471 has never becom e law, see Historical and Statutory Notes to Title 28, U.S.C., Chapter 90 , § 157 of that title details ways in which non-core, related proceedings such as this one may be decided.-19-

The district court and the bankruptcy court have op tions open to them of which we are sure they are aware. See Lawrence P. King, Collier on Bankruptcy ¶ 3.03[1] (15th ed. rev’d. 1997). While Mrs. Ebel urges that the decision of the district court should be affirmed because, among ot her reasons, the state court proceedings have been closed, it appears from the b riefs that there may exist a mechanism under the Colorado version of Fed. R. Civ . P. 60 to reopen the state case for purposes of the property division hearing. We do not take a position on which avenue of decision is the appropriate one. W e leave it to the district court and/or the bankruptcy court on remand to determine the most efficient means by which to resolve this case. We note the inordinate amount of time and expense i ncurred by the parties in this case. At least for purposes of this portio n of the saga, much of the effort incurred by Mrs. Ebel could have been avoided if sh e had petitioned for relief from stay before continuing with the property divis ion proceedings in the Boulder court. While we agree with the bankruptcy court th at, on remand, the property division may well be resolved exactly as it had bee n by the Boulder court in 1990, that suspicion does not justify allowing the procee dings to go forth in derogation of the automatic stay rights of Mr. Ebel.-20-

The judgment of the United States District Court fo r the District of Colorado is REVERSED, and this case is REMANDED forfurther proceedings consistent with this order and judgment.

Entered for the Court

Michael R. Murphy Circuit Judge